Friday, April 18, 2014

The Constitution and the Failures of Contemporary American Politics

Note: This column recently appeared in Politics In Minnesota.

Is the polarization and dysfunctionalism in contemporary American politics an accident or a product of design failure? The more one thinks about it the conclusion may well be that the many of the problems now confronting the United States are the product of a faulty Constitution, or at least one that may perhaps have outlived its times. Many mythologize our Constitution and the men who wrote it. This seems especially true among the Tea Party faction of the Republican Party. They see in James Madison, Alexander Hamilton, and other Founding Fathers a “genius” to the American political process (as historian Daniel Boorstin described it) where the product of their efforts was creation of a representative democracy that really reflected the first three words of the Constitution–“We the people.” Yet historian Richard Hofstadter counseled against seeing the Constitutional Framers as gods, but instead as who they really were–smart politicians with their own interests, prejudices, and limitations who affected compromises to create the American political system. Among lost milestones in 2013 was the one hundredth anniversary of the publication of Charles Beard’s An Economic Interpretation of the Constitution of the United States. In that book Beard made a radical argument that the Framers were economic elitists who did not trust the common man, writing a Constitution to further their economic interests which they felt were threatened by America’s first constitution, the Articles of Confederation. The Articles government according to Beard, was an economic disaster for business interests, and many of the constitutional framers were being hurt by this government. The tipping point for them was Shay’s Rebellion, demonstrating to many of them, including Alexander Hamilton, the dangers that the people could pose to the rich. Beard’s book catalogues the economic background of the constitutional framers, all slaveholders or wealth businessmen except for a couple. They wrote a document giving Congress vast powers to regulate and strengthen commerce, and it was also constitution that preserved slavery, stood silent on voting rights, and otherwise created a system of checks and balances, separation of powers, and other power-dividing mechanisms that made it difficult, as James Madison said, for majority factions to take over the political process. Political scientist Robert Dahl described the Constitution too as a mechanism to slow down political change, making it difficult to effect reform or change unless there was significant time and consensus to achieve it. Beard’s controversial challenge was to assert that the complex constitutional system was not meant to produce democracy, but instead shield the rich from the poor and to entrench the power of the former forever. John Jay, one of the framers and co-author of the Federalist Papers, once exclaimed that “Those who own the country should rule it,” while James Madison famously declared in Federalist number ten that: “But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.” For Beard, the real genius of American politics was how the Framers recognized the inevitability of class conflict but designed a political system than transformed it into group competition, forever dividing the people among various interests, thereby sublimating strife between the rich and poor. In short, as former Supreme Thurgood Marshall said, “We the people” was the reality of the Constitution, it excluded many from its promise and it took a Civil War, two civil rights movements, and more than a score of amendments to even give faint meaning to the promise of these three words. Looking back over time one wonders to what extent Beard was correct in that the Constitution was designed to assure rule by a privileged elite or that, to update his thesis, that the polarization and dysfunctionalism in contemporary American politics is not just an accident but is exactly what the Framers wanted. America is a society where economic privilege allocates political power. Who votes, who runs for office, who gives money, and who benefits from our public policies is significantly determined by economic status. The “winners” in the American political system look surprisingly a lot like the profile of the constitutional framers of 1787. The Electoral College mechanism for electing the president along with the federalism it embodies have split America into regions since the early days of the republic. Small states, such as in Senate, can gang up and filibuster legislation and thwart majorities even though they only constitute a small portion of the population. And in the House the requirement that every state receive at least one House member too gives disproportionate influence to small populations. Couple that with gerrymandering and we have created a political system where there are increasingly fewer and fewer incentives to compromise. This means fringe voices, especially in the political right these days, are given a virtual veto over reform. Certainly the American political system is not meant to be winner take all pure populism. It is a balancing of majority rule with minority rights, but is the minority the Koch brothers and others with money, or those hostile to the rights of women, people of color, and the GLBT community? The political process which was designed as a compromise seems increasingly unable to create the incentive to compromise, or at least it does not work because some do not want it to. Instead of seeing our political system now as one where the slowness to change and demand to compromise were viewed as virtues to protect liberty, it now appears to be one that is unable to act, paralyzed by gridlock. If Charles Beard as updated is correct, one should not be surprised by what is happening across the United States. The polarization and dysfunctionalism is either an intentional feature to preserve the power for a few, or as law professor Sanford Levinson contends, a sign of original design flaws in the Constitution that are now coming to haunt America more than two centuries later. In either case, as we head into the 2014 and then 2016 political cycles, we should ask whether the Constitution we mythologize really is up to the task for the demands of the twenty-first century and if it is the cause of, or the impediment preventing the resolution of many of the pressing problems in contemporary American politics.

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.